Evidence Was Sufficient To Remove Children From Father’s Custody | Speaker Law
phone icon email icon
(517) 482-8933

Speaker Law

Evidence Was Sufficient To Remove Children From Father’s Custody

Posted on Wednesday, January 13, 2021

The trial court properly ordered that the children be removed from their father’s custody because there was sufficient evidence that the father’s alleged “roughhousing” presented a substantial risk of harm to the children, the Michigan Court of Appeals has ruled.

The respondent-father in In re Benavides, Minors (Docket No. 352581) appealed the Wayne County Circuit Court’s order removing his children, LKB and ZMB, from his custody after a preliminary hearing when it authorized a supplemental petition.

The trial court did not err in removing the children from the respondent’s custody “because there was sufficient evidence that respondent presented a substantial risk of harm to the children when he engaged in ‘roughhousing’ with them over the objection of the caseworker, the children received suspicious bruises from the roughhousing, and one child required hospital treatment for a visible handprint on his face,” the Court of Appeals said. “This evidence satisfied the requirements of MCL 712A.13a(9) to support the removal.”

Judges Jane E. Markey, Kirsten Frank Kelly and Jonathan Tukel were on the panel that issued the published opinion.


Child Protective Services (CPS) began proceedings in September 2018 because the children’s mother suffered from substance abuse issues that endangered LKB. It was known at the time that the mother and the respondent had engaged in domestic violence. However, there was no indication the respondent had physically abused the children. Therefore, the children were placed in the respondent’s care.

A petition seeking removal of the children from respondent was filed in May 2019 after a domestic violence incident occurred in the presence of the children. The respondent was convicted of domestic violence and placed on probation.

The respondent lived in a home with the children, and the children’s paternal uncle and grandmother. While living with the respondent, the children missed 50 days of school. Moreover, although the respondent refused to allow CPS into his home for an assessment, the children’s paternal uncle allowed CPS inside to conduct the assessment. Meanwhile, the respondent had been ordered to complete parenting, domestic violence and anger management classes.

The children continued in the respondent’s custody until January 2020, when the Department of Health and Human Services (DHHS) filed a supplemental petition against the respondent. The DHHS alleged the respondent physically abused ZMB in late December 2019 and, therefore, it sought the children’s removal from the respondent’s care. Specifically, the assigned caseworker requested a change of plan petition because the respondent slapped ZMB in the face, which caused severe bruising and a bloody nose. ZMB was treated at an urgent care facility which apparently documented an observable handprint on the child’s face. However, ZMB was nonetheless released to the care of the respondent. The children also had a history of unexplained bruises, which the respondent attributed to “roughhousing.” The caseworker had requested that the respondent stop this “roughhousing” activity.

In addition to referring the respondent to domestic violence and anger management classes, the DHHS also conducted family team meetings, made home visits and placed the children in a safety plan with the paternal uncle. However, the respondent was only partially compliant with his treatment plan and he was terminated from parenting classes. In the meantime, the mother was not a viable placement for the children because she had not completed her own treatment plan. Although the respondent had his own treatment plan and was allowed to keep the children in his custody while participating in services, the supplemental petition filed by  DHHS concluded there was a risk of harm to the children. The caseworker sought to place the children with their paternal uncle, with whom they were residing.

Because the respondent lived with the children and the paternal uncle, he agreed to move out of the home to prevent disruption to the children’s living arrangement. The trial court authorized the supplemental petition and ordered the children to be removed from the respondent’s custody and placed with DHHS, while their physical residence continued to be with their uncle.

The respondent appealed.

Removal From Custody

On appeal, the respondent argued the trial court erred in removing the children from his custody because there was insufficient evidence to support the requirements of MCL 712A.13a(9) and MCR 3.965(C)(2).

Specifically, the respondent claimed the safety plan with the paternal uncle and the lack of additional injury between the urgent care visit and the preliminary hearing demonstrated that the children were not subject to a substantial risk of harm and, therefore, the safety plan could continue.

“We disagree,” the Court of Appeals said, noting the foster care worker had testified the respondent slapped ZMB, causing the child’s nose to bleed and leaving a handprint-shaped bruise on his face, although the respondent told the foster care worker he was simply “roughhousing” with the child.

“This was not the first time one of the children had injuries respondent claimed were from roughhousing,” the Court of Appeal observed. “Respondent had a history of domestic violence against the children’s mother in their presence. He was referred to anger management, domestic violence, and parenting classes. Although respondent began those services, he had not completed them. After this incident, a safety plan was put in place, and the paternal uncle agreed to prevent the abuse of the minor children. In light of [the foster care worker’s] testimony, the referee found ‘it’s, clearly, contrary to the welfare of these two boys to remain in their father’s care because of the allegation of severe physical abuse.’”

Further, the Court of Appeals pointed out the referee had concluded the respondent’s physical abuse and inappropriate discipline of the children placed them at an extreme risk of harm. “The referee also indicated on the form order that: (1) it would be contrary to the welfare of the minor children to remain in respondent’s custody, (2) reasonable efforts to prevent removal of the minor children from the home were made, (3) respondent having custody of the minor children would present a substantial risk of harm to the children, (4) no reasonably available service would adequately safeguard the minor children from the risk of harm, and (5) conditions of custody away from the minor children’s home were adequate to safeguard the minor children. The trial court adopted the referee’s recommendation.”

Based on the foregoing, the trial court’s findings were not clearly erroneous, the Court of Appeals said. “The court’s order considered all five requirements of MCL 712A.13a(9). Respondent’s argument – that the safety plan involving the paternal uncle or other additional services would have been sufficient to protect the minor children – is unpersuasive. The children had a history of suspicious bruises, and respondent failed to stop ‘roughhousing’ with the children despite the agency’s request. Further, the bruising and missed schooling occurred while DHHS became involved because of the mother’s issues. The injury to ZMB occurred when respondent had received a treatment plan from DHHS, but respondent had not engaged in and benefitted from the services. For these reasons, we are not “left with a definite and firm conviction that a mistake has been made.”

Notice Of Placement Change

The respondent also argued the trial court failed to advise him of his rights under MCL 712A.13a(10) following the placement decision.

“We disagree,” the Court of Appeals said.

“Respondent contends that the trial court erred by failing to advise that the children’s removal required the agency prepare an initial services plan, the plan must contain the statutory elements, and the plan’s participation was voluntary,” the Court of Appeals explained. “However, in light of the plain language of the statute, we conclude that MCL 712A.13a(10) did not apply to respondent’s circumstances. Although it was concluded that the children needed to be removed from respondent’s care, it was determined that the children did not need to be removed from their home where the safety plan with the paternal uncle was established. Rather, respondent agreed to leave the home to allow the children to remain in the residence to avoid a disruption to the children’s environment. Thus, the precipitating event, the placement of the juvenile outside the home, did not occur, and therefore, the trial court was not required to advise of the preparation of an initial services plan.”

The Court of Appeals further observed that, although the petition stemmed from the children’s mother, the respondent was also subject to it and was required to participate in services because of the domestic violence the respondent perpetrated against the mother in the children’s presence. “Because respondent was already required to participate in services, there was no need to discuss with him an initial services plan, nor was there any need to apprise him of any conditions per MCL 712A.13a(10). Respondent is not entitled to appellate relief under these circumstances.”

Accordingly, “finding no errors warranting reversal, we affirm,” the Court of Appeals concluded.

Do you have an appeal?
Let's find out!


MSC: State Law Prohibits Discrimination Based On Sexual Orientation
Aug 10, 2022
In Rouch World, LLC v Dep’t of Civil Rights (Docket No. 162482), a ...
Facebook ‘Tagging’ Violated PPO: Not Constitutionally Protected Speech
Aug 3, 2022
The Court of Appeals also rejected the defendant’s argument that th...
Divorced Mother Not Required To Split Child’s SSI Benefits With Ex-Husband
Jul 27, 2022
A divorced mother was improperly ordered to direct half of her deve...
Law Firm’s Deposit Of Two-Party Insurance Checks Is “Conversion”
Jul 20, 2022
A Grosse Pointe law firm engaged in statutory conversion by deposit...



Subscribe to our blog

* indicates required